KOCH J.—Pounds v. Ganegama.
An injunction can be used to eject a trespasser—see 17 Halsbury (1stad.) p. 233, s. 508; Goodson v. Richardson1; Allen v. Martin *; Kerr onInjunctions, p. 115; ‘Stretton v. Great Western Railway Co.*; and Wood-roffe on Injunctions, p. 361.
H. V. Perera, K.C., in reply.—On the material placed by the plaintiffsan injunction ought not to have issued. It has been worded as aninjunction, but in fact it gives possession to the plaintiffs. A plaintiffout of possession cannot gain possession by way of an injunction. –
Cur. adv. vult.
June 10, 1938. Koch J.—
The appeal is from an order of the District Court refusing to dissolvean interim injunction which was obtained by the respondents againstthe appellant on March 12, 1937.
The application for the injunction was contained in the prayer of theplaint of an action instituted by the respondents against the appellant fora declaration, inter alia, that the respondents were entitled to the fulland exclusive possession and control of a business known as “ The IdealStores, Matara ”.
The plaint was supported by an affidavit sworn to by Horace JohnHutchings, who described himself as the attorney of the first respondentand the secretary of the second respondent company.
The facts set out in the plaint and in the affidavit and relied on insupport of the application were: —
That by and under an indenture executed on May 18, 1933, between therespondents and one George Senaratne, a partnership was entered intoin regard to the carrying on of the business known as “ The Ideal Stores
That according to the terms of the said indenture, the general manage-ment of the said business was to be under the entire and sole control ofthe first respondent;
That as the said George Senaratne was indebted to the second respond-ent, this debt was to be liquidated out of a three-fourth share of the nettprofits of the said business and that the remaining one-fourth share wasto be paid to the said George Senaratne ;
That in the event of the death of the said George Senaratne, the businesswas to be continued to be carried on as before and his share, namely,49/100 shares, if not purchased by the first respondent, was to devolveon his heirs who would be entitled to so much of the nett profits asGeorge Senaratne would have been entitled to, but they would be subjectto and bound by the terms and covenants of the indenture ;
That the said George Senaratne died on April 9, 1934, leaving a last willwhich was proved and under the terms of which his widow and his brotherSucceeded to his share of the partnership and to his right to be paid aone-fourth share of the nett profits ;
That the deceased’s share was not purchased by the first respondentand the business continued to be carried on under the supervision andcontrol of the respondents ;
i (1874) 9 Ch. ‘4pp. 221.'2 (1875) L. R. 20 Bq. 462.
3 L. R. 5 Ch. 751.
KOCH J.—Pounds v. Ganegama.
That at or about the end of 1936, there was a Sum of over Rs. 8,000still due to the second respondent from the estate of the said GeorgeSenaratne and also a sum of Rs. 7,859.23 from the business ;
That the defendant who was appointed manager of the business of “ TheIdeal Stores” by the respondents at a date prior to the dates materialto the action and who acted under the control and supervision of therespondents was given notice on January 30, 1937, terminating hisservices as from and after February 28, 1937 ;
That the appellant instead of relinquishing his management at the endof February repudiated his contract of employment and wrongfully andin defiance of the respondent’s rights continued to remain on the premisesand to be in unlawful possession and control of the said business.
The acts complained of against the appellant are that he has refused to <hand over to the respondents the stock-in-trade, money and other assetsof the business, that he wrongfully claims to be in possession of thebusiness and its assets by a right adverse to that of the respondents,that he refuses to allow the respondents to take stock of their goods or tocheck the accounts thereof or to hand over the cash realised by sales orby payments by those owing money to the business, and that he is makingit impossible for the respondents to carry on the said business.
The affidavit further states that it is anticipated that the appellantwill dispose of the stock-in-trade and appropriate the proceeds thereofand do such other acts in disregard and violation of the respondents’rights as would render the provisions of the indenture nugatory to theloss and damage of the respondents unless restrained by an injunction.
On this material, the Court, on March 12, 1937, ordered an injunctionto issue in terms of the prayer and the Fiscal on the same day served theinjunction on the appellant’s agents and employees who vacated thepremises when, it is admitted, the respondents took possession andcontrol. Three days later the appellant filed a petition and affidavitpraying for a dissolution of the injunction on the ground, inter alia, that-several of the averments in Hutching’s affidavit were untrue, that theappellant was in possession in his own, right and independent of therespondents, that the respondents never managed or controlled thebusiness, and that no injunction addressed to him issued from the Courtnor was an injunction served on him personally. After inquiry thelearned District Judge refused, on November 10, 1937, to dissolve theinjunction. The defendant has appealed from this order.
The appellant restricted his argument to matters of law which hemaintained applied whether he was rightly or wrongly in possession.Appellant’s Counsel, when informed that the order granting the injunctionwas signed by the Judge or at any rate bore his initials, was not disposedto press his arguments on the points that the injuction had not beenaddressed to the appellant nor personally served on him. He confinedhimself to contending that although there might have been materialbefore the Court for granting an injunction, yet the injunction should not
KOCH J.—Pounds v. Ganegama.
have been issued in the terms prayed for as the effect of some of the termswas to oust his client and place the respondents in possession and control.He referred to terms *1, 5, and 6.
The appellant was restrained by term 1, “ from interfering with therespondents in their management and control of the business”; byterm 5, “ from preventing the respondents taking charge of all the stock-in-trade, money, goods, fixtures, books of accounts, &c. ”; by term 6,
“ from preventing the respondents from entering upon the premises inwhich the business was run ”,
That these terms had the effect which appellant’s Counsel ascribed to'.hern-there can be little doubt and it has transpired, to judge from resultsthat it did in fact have that effect.
The power of a Court to grant an injunction is given by section 87 ofthe Courts Ordinance, No. 1 of 1889. Under that section this power canbe exercised under any one of the three sets of circumstances set out inthe section.- It may be, and very likely too, that the respondents havedepended on facts which would bring their case under every one of thesesets, but what is the relief which can be granted ? The section onlypermits the Court to restrain the defendants from doing or committingany of the acts set out in it. I can see nothing in the section thatempowers a Court to remove a defendant from the possession of thesubject matter of an action and to place the plaintiff in possession insteadpending the result of the action. Sub-section 2 of section 87 refers to thecase of a defendant, who during the pendency of an action, does orcommits an act in violation of the plaintiff’s right respecting the subjectmatter of the action and which tends to render the judgment ineffectual—a situation similar to the one before us as protrayed by the respondents—and yet the remedy as laid down does not proceed beyond restrainingthe defendant from committing such and act.
Mr. Perera has also referred us to a passage in Woodroffe on “Injunc-tions ” (2nd ed.) at p. 97 which is to the effect that “the object of aninjunction is to prevent future injury and leave matters as far as possiblein statu quo until the suit in all its business can be heard and determined ”.
Mr. Hayley on the other hand contends that on the averments of theaffidavit relied on by him, it is clear that the appellant was a trespasserand that he was therefore entitled by injunction, though of an interimnature to have the appellant removed and his clients. placed in possessionpending the trial of the action.
He cited in support the case of Gordon v. Richardson'. The facts hereare that the plaintiff was the owner in fee of a moiety of a highway adjoininghis lands. The defendant, having obtained permission from the HighwayBoard to lay down pipes along the highway for the purpose of. supplyingwater .to his houses, laid pipes in the soil of the side of the road adjoiningthe plaintiff’s land and without his consent. The upper surface of themoiety of the highway was dedicated to the public, but the soil in whichthe pipes were laid belonged to the plaintiff. The work of laying downthe pipes had been completed and'the defendant insisted on keeping the'1 9 I.av.: Reps. .Ch. App. 221.
KOCH J.—Pounds v. Ganegama.
pipes and allowing the water to go through them. On the facts, the Courtwas of opinion that the defendant was a trespasser and a continuingtrespasser and held that the judgment of the Master of the Rolls allowinga permanent injunction should not be disturbed. Now the pipes, as oneof the Judges, Sir G. Mellish L.J. said, were still chattels and had notbecome part of the realty for there was no intention to annex them to thesoil and it was clear that the defendant had not got into possession of anyportion of real property “so as to make it necessary for the plaintiff to bringan action in ejectment The pipes therefore were still the property ofthe defendant, the plaintiff being in possession of the soil, and the effectof the permanent injunction was to cause the defendant to remove hisown property and thus put and end to the trespass which he had com*mitted by placing his property in land belonging to the plaintiff. Savefor the removal of the property—property which admittedly belonged tothe defendant—the position of the plaintiff was the same after theinjunction was granted as it was before. I cannot therefore see that thisdecision has any application.
The next case cited was that of Allan v. Martin This case is stillless helpful. The applicant for the injunction was the owner of a gardenover which his tenants of the adjoining houses had rights of enjoymentand management. Graham had on behalf of the occupiers the manage-ment of the garden. He proposed to make certain alterations andimprovements within reason, and entered into a contract with one Martinto do this work. Martin without the authority of Graham commenceddigging out and selling the sand subsoil and committed a number of actswhich were outside and beyond the right of enjoyment and managementwhich the occupiers had. The plaintiff therefore filed a bill to restrainthe defendant Martin from entering or Temaining upon the garden andfrom continuing to commit such other acts as were complained of. SirCharles Hall V.C. was not disposed to grant the injunction in the termsasked and to turn the defendant out of the garden, but confined theinjunction to restraining the defendant and his agents from furthercommitting the acts complained of. The decision in this case thereforedoes not help the present respondents.
Counsel also referred to the case of the Attorney-General v. Tomline This case can be distinguished on more grounds than one. It was not anapplication for an interim injunction pending the trial but a regular suitfor a permanent injunction and damages. Besides, the plaintiff was inactual possession of the land when the defendant entered upon it andexcavated for minerals. The plaintiff continued to remain in possession,but his grievance was that the defendant had no right to dig and excavate.The relief he wanted was that the defendant should be prevented fromfurther trespassing by excavating and that he should be paid the damagessustained. In these circumstances it would appear that he rightly claimedin his suit tc be entitled to a permanent injunction restraining the defend-ant and to damages. This was allowed. There was no term in the.
2 Law Reps, 5 Ch. Die. 750.
1 20 Law Reps, Equity Cases 462.
KOCH J.—Pounds v. Ganegama.
injunction that he should be restored to possession nor was thi* askedfor as he continued t.o remain in possession and was only disturbed by theexcavation works which the defendant carried out.
A passage at p. 102 in Kerr on Injunctions {5th ed.) was also read tous as being the law after the Judicature Act, 1873. What is stated isthat “ an injunction may be asked before the hearing to prevent anythreatened waste or trespass and may be granted whether the defendantis or is not in .possession ”. That a defendant in possession can berestrained from commenting acts which amount in law to a trespass onplaintiff’s rights can well be understood, and this would be an authorityfor the respondents in this case justifiably to ask that the appellant whois in possession be restrained from doing such of the acts as are set out interms 2, 3, and 4 of the injunction; but what has been quoted cannotbe availed of to enable the respondents to enter into possession pendingthe trial. ■
Mr. Hayley also cited section 532 in Halsbury’s Laws of England, vol. 17at p. 249 which is to the effect that the Court will restrain by injunctiona partner from violating the terms of his partnership and acting incon-. sistently with his duties as a partner. But the present respondents madetheir application on the footing that the appellant was a trespasser andit was on that footing that the injunction was ordered to issue. In anyevent, I am not prepared to go to the length that Counsel would wish usto go in construing that the effect of the restraint would involve therestoration of one partner, who has been kept out of partnership propertyby another partner, to possession of that property.
Finally, it is argued that unless the respondents are permitted to enterand take charge of and to carry on the business, the'business 'would cometo a standstill and grave loss will result. The position of the respondentsis, no doubt, unfortunate, but there is still a way out of this difficulty, andthat is by the appointment of a receiver under section 67i of the CivilProcedure Code till the.action is determined. Halsbury’s Laws of England,vol. 17, s. 535, at p. 250 contemplates a receiver being appointed in the caseof a deadlock between partners.
It is a common occurrence in Ceylon for a person unlawfully to enterupon land and turn out the party in possession. Such acts have led toinnumerable actions for declaration of title and ejectment by parties sodispossessed and though in such actions it is sometimes asked, and rightlytoo, that the defendant be restrained from committing wasteful acts onthe land pending final determination of title, no decision has been citedto us—and as far as I am aware there is no such decision—in which undersuch circumstances the plaintiff was able to be placed in possessionpending trial by means of an interim injunction. The reason, no doubt,is that the law will not permit such a proceeding and, if this is so in sucha flagrant type of case, could it be expected that the law will enable aparty who was not in actual occupation to enter by injunction and takepossession as against a person who, having been in occupation as alicensee, has repudiated that position and claims to be in possession inhis own rights.
de KRETSER J.—Sabapathy v. Tharmalingam.
I am of opinion that, by reason of the insertion of terms 1, 5, and 6 inthe injunction, the injunction is bad and that its issue and execution waswrongful. The order of the District Judge of November 10, 1937, is setaside, the injunction dissolved, and the appeal allowed with costs. Theappellant will also be entitled to the costs of the inquiry in the Courtbelow. .
Maartensz J.—I agree.
Appeal allowed: